We often hear of accidents in which a child or toddler is injured. Has this become something which society accepts as the norm… that accidents do happen?

Who bears liability in this case and who is responsible for safety in these situations?

Accidents happen so quickly, the kind which turns a day of excitement into a nightmare filled with horror. These types of freak accidents can happen in the blink of an eye if the necessary steps are not taken to prevent them.

Take your local restaurant as an example. Nowadays every restaurant has some sort of playroom or entertainment area, which is available for the use of children and toddlers. These entertainment areas have now also become popular at nurseries and even at functions such as weddings or parties, in order to keep the youngsters entertained.

The question remains – who is to be held responsible for ensuring the safety of all at these entertainment places? What is the legal position today in South Africa?

In order to determine the legal position we have to relate to some practical examples, thus we will make use of the example where entertainment is offered at local nurseries or restaurants, as well as at functions. The Children’s Act will find application hereto.

Section 140 of the Children’s Act 38 of 2005 finds application if:

the place of entertainment is accessible through the use of doors, stairs or even lifts and this includes entrance by mechanical means;

the majority of the people entering the area are children; and

the number of people, including children, entering the premises, is more than 50 at a time.

In the abovementioned case the person providing the entertainment must take notice of the measures to be applied as set out in the Commentary on the Children’s Act, with specific reference to Section 140 thereof.

The person providing entertainment in an area qualifying in terms of the above, is also required to know how many people, including children, can be accommodated on the premises, and must also ensure that there is a sufficient number of attendants available to assist in ensuring that too many children do not enter the area of entertainment, alternatively ensure, upon admittance, that it is completely safe for them to do so.

Should the number of people (including children), exceed 50 in total, it remains the responsibility of the person providing the entertainment to ensure that all the reasonable steps and precautionary measures are taken to ensure the safety of the children and other people at such a place of entertainment, in order to ensure the safety of all at all times.

I refer again to the example of the restaurant or function. These places of entertainment sometimes accommodate large numbers of children at a time, even toddlers. This would require strict adherence to the safety measures set out.

A children’s party, where a jumping castle is available, is another example. For instance, it is the birthday party of Mr X’s daughter, and Mrs Y has offered to set up her jumping castle at the party for the entertainment of the children. In this case it would remain the responsibility of Mrs Y to ensure that all safety measures are complied with and she, as host of the entertainment, will be held liable to ensure the safety of the children. Should Mrs Y not be held liable for some reason, the liability to ensure the safety of the children will fall upon Mrs Y’s principal, as the “agent of the entertainment”.

It remains of utmost importance for the presenter or agent of the entertainment to take all reasonable steps necessary to ensure the safety of the children and even the toddlers, insofar as it is possible. In situations such as these, where large numbers of children are accommodated, stricter measures of safekeeping will be demanded.

This brings us to another requirement. The requirement that the movement of all participants to the specific entertainment must also be monitored at all times.

The overall requirements to qualify in terms of Section 140 create the impression that the section and the measures to be taken only find application in situations where entertainment is presented indoors. This is in fact not the case. Outdoor entertainment areas, where access is controlled, also fall under these criteria.

Outdoor areas such as beaches and open fields will obviously not form part of or fall under the criteria, seeing that there is no regulation of access to such places.

In summary we can thus conclude that the responsibility to ensure the safety and protection of the children making use of the entertainment areas will be that of the “entertainment organiser “or “entertainment manager”, and that this person should take the following steps:

determine the maximum safe accommodation space for the number of children or people who are expected to be entertained;

ensure that extra children do not enter such premises unless it is safe;

control the movement of all children within the area; and

ensure that overall safety is upheld within the vicinity of the entertainment area and the specific area at all times.

The problem is that things can still go wrong and this brings us to the steps that can be taken against the offender.

Even though there are currently no criminal sanctions envisaged or determined, measures can still be implemented against the offender.

A person who is duly authorised by the municipal authority of the area may enter an enclosure at any given time in order to ensure that all the safety measures are complied with. If they are found not to be compliant, such duly authorised person may withdraw any licence that was granted/issued to permit the entertainment that is offered.

Other measures include municipal health and safety by-laws which may be invoked in order to disallow the entertainment until the necessary safety measures are taken.

And finally, there is always the option of instituting a delictual claim against the offender in the event of injury or damages suffered as a result of negligence on the part of the offender.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Sipho Swart is continually being called gay and other related names by a group of people at the local taxi rank. He was recently pushed to the floor by one of these members of the group.

Roelien van der Merwe was distraught when she found out there is a website containing terrible comments about her. It was talking about her weight and said things along the lines that she was dirty. The website invited others to become actively be involved with bashing her.

For a long time, victims of harassment (harassment includes abusive electronic communication, stalking and bullying), have battled with behaviour that violated their rights but that was not considered criminal and therefore could not be punished by law.

The long awaited Protection from Harassment Act 17 of 2011 came into operation on 27 April 2013. Under the Act, harassment is not limited to physical and verbal abuse. People who receive threats or unwanted attention via social media and text messages may also apply for a protection order.

Who is protected?

The Act makes it possible for anyone who feels harassed to approach the court without a legal representative and apply for a protection order.

A child under the age of 18, without the assistance of his/her parents, or a person on behalf of a child, may apply for a protection order.

If a person is not able to apply for a protection order for himself, another person who has a real interest in stopping the harassment can apply for a protection order on the harassed person’s behalf.

What protection is offered?

The Act allows for a special process by which an initial court order is made without the immediate knowledge of the person who is harassing the complainant. The order is based on the complainant’s side of the matter only. The Court will immediately grant the order where it is satisfied that there is prima facie evidence that the complainant is being or may be harassed and that harm is or may be suffered if the protection order isn’t granted immediately.

A future date is then arranged for the person against whom the protection order is sought to oppose the interim protection order being made a final order of court.

In addition, a protection order can be tailored to the needs of the complainant in his/her specific situation. This means that the court has the power to prohibit a person from engaging in harassment or committing any act specified in the protection order.

A warrant of arrest may be issued at the same time that the protection order is granted. If the person contravenes the protection order by continuing to harass the complainant, that person may be immediately arrested.

Failure to comply with the final protection order is a criminal offence and the transgressor may be liable on conviction to a fine or imprisonment for a period not exceeding five years.

How do I apply for a protection order?

The complainant must apply for a protection order by completing an application form at any magistrate`s court where he/she lives or works or any magistrate’s court where the instigator of the harassment lives or works.

The complainant is required to set out the reasons why a protection from harassment order is sought and to provide detailed descriptions of all incidents of harassment he/she has experienced.

The complainant is also able to request that the specific acts committed by the person causing the harassment be listed in the protection order, as well as to request the court to impose any additional conditions necessary to protect the complainant and provide for his/her safety and well-being.

In order to protect the complainant, the physical home or work address of the complainant will be omitted from the protection order provided to the perpetrator.

Bullies will now think twice before sending sexually offensive and other abusive material, as the long arm of the law will be effective in dealing with those who hide behind anonymity.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

The Labour Relations Act, 66 of 1995 (LRA) has been in the spotlight recently following communications from government that it is considering designating the education sector as an essential service. This has created a source of tension between government and the education sector unions regarding teachers’ right to strike.

The right to strike is a right afforded to all employees in terms of section 23(2)(c) of the Constitution of the Republic of South Africa, Act 108 of 1996. However, the LRA does contemplate restrictions on the right to strike in respect of those employees who are engaged in essential services.

A service or industry or any part thereof may be designated as an essential service by the Essential Services Committee (ESC), established in terms of section 70 of the LRA. The ESC is tasked with designating a service, or any part of a service as an essential service, after conducting an investigation into whether or not such a designation should be made. It is critical to note that any parties who may be affected by the designation of a service as an essential service by the ESC, has the right in terms of section 71 of the LRA (which sets out the procedure in terms of which the ESC will designate a service as an essential service), to make representations to the ESC in regard to whether or not a service should be so designated.

Unions have argued that the designation of a sector or service as an essential service is unconstitutional in that such a designation takes away the rights of employees working in a particular industry to strike. However, while this is correct in that section 74(1) of the LRA provides that employees working in a designated essential service may not strike, these provisions are not one-sided, and the LRA provides for additional mechanisms, which ameliorate what seems to be a blanket restriction against striking.

Firstly, the employer in the essential service is similarly restricted from utilising its own bargaining power to lock employees out of the workplace to compel them to accept the employer’s terms and conditions. The LRA goes on to provide for a mechanism in terms of which essential service workers can legally and lawfully embark on strike action, provided that certain agreements are first put in place.

Section 72 of the LRA provides for parties in designated essential services to enter into a collective agreement, which can regulate the minimum services to be provided by workers in that essential service in the event of a strike. If such a minimum service collective agreement is reached, it will have the effect that:

the minimum service levels agreed to will become the essential service; and

section 74 of the LRA – which prevents essential services workers from striking – will no longer apply.

This will mean that the only employees who will be prevented from striking are that number of employees, or percentage of the workforce that is required to continue providing the minimum services. All other employees who are not required to provide the minimum service, even though they are employed in a sector or industry designated as an essential service, will be allowed to strike.

The minimum service agreement must contain the following detail:

whether the service is essential in its entirety or only partially essential;

whether the service is essential at reduced service levels;

the minimum number of employees required to continue working during a strike, expressed either as a number or as a percentage of the current workforce;

the type of services that must be continued during strike action;

minimum service levels associated with various functions and duties to be performed during strike action; and

waiver of a right to engage replacement labour to provide services in excess of the minimum services.

CONCLUSION

In light of the above it is clear that, even though the LRA provides for a mechanism in terms of which sectors can be classified as an essential service, to the extent that this does not take place the mechanism of concluding minimum service agreements through the collective bargaining process may be an alternative means of ensuring continued minimum service levels.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.